Procedures for Implementing NEPA; Processing of Department of the Army Permits

<RULE> DEPARTMENT OF DEFENSE <SUBAGY>Department of the Army, Corps of Engineers</SUBAGY> <CFR>33 CFR Parts 320, 325, and 333</CFR> <DEPDOC>[Docket ID: COE-2025-0006]</DEPDOC> <RIN>RIN 0710-AB20</RIN> <SUBJECT>Procedures for Implementing NEPA; Processing of Department of the Army Permits</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Army Corps of Engineers, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule removes the U.S. Army Corps of Engineers (Corps) National Environmental Policy Act (NEPA) implementing regulations, used for evaluating permit applications, which were promulgated to supplement now-rescinded Council on Environmental Quality (CEQ) regulations, and replaces them with a new regulation that also address requests for permission under Section 14 of the Rivers and Harbors Act of 1899. Further, the Army is also making conforming changes to its regulations to eliminate references to Appendix B and other NEPA implementation regulations. In addition, this interim final rule requests comments on this action and related matters to inform Army's decision making. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim rule is effective July 3, 2025. Comments must be received on or before August 4, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by docket number COE-2025-0006 and/or 0710-AB20, by any of the following methods: <E T="03">Federal eRulemaking Portal: http://www.regulations.gov.</E> Follow the instructions for submitting comments. <E T="03">Email: CEHQ-NEPA@usace.army.mil.</E> Include the docket number, COE-2025-0006, in the subject line of the message. <E T="03">Mail:</E> U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street NW, Washington, DC 20314-1000. <E T="03">Hand Delivery/Courier:</E> Due to security requirements, we cannot receive comments by hand delivery or courier. <E T="03">Instructions:</E> If submitting comments through the Federal eRulemaking Portal, direct your comments to docket number COE-2025-0006. All comments received will be included in the public docket without change and may be made available on-line at <E T="03">http://www.regulations.gov,</E> including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through <E T="03">regulations.gov</E> or email. The <E T="03">regulations.gov</E> website is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to the Corps without going through <E T="03">regulations.gov</E> your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment and with any compact disc you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Milt Boyd, 703-459-6026. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> A. The Army Civil Works Regulatory Program is authorized to issue permits for certain activities in jurisdictional waters and wetlands under the following statutory authorities: 33 U.S.C. 1344 (Clean Water Act (CWA), section 404); 33 U.S.C. 401 (Rivers and Harbors Act (RHA) of 1899, section 9); 33 U.S.C. 403 (RHA of 1899, section 10); and 33 U.S.C. 1413 (Marine Protection, Research, and Sanctuaries Act of 1972, section 103). Title 33 Code of Federal Regulations (CFR) part 325, appendix B, outlines the NEPA implementation procedures for the Regulatory Program of the Corps. Appendix B supplements the Council for Environmental Quality (CEQ) NEPA regulations, 40 CFR 1500-1508, as well as relying on the Corps NEPA regulation at 33 CFR part 230 “[f]or additional guidance.” Appendix B.2. Part 230 in turn also rested on, and supplemented, the CEQ NEPA regulations. Appendix B also provides guidance on public involvement, the preparation of Environmental Assessments (EA), Findings of No Significant Impact (FONSI), and Environmental Impact Statements (EIS). The appendix also addresses the scope of analysis for NEPA documents, including the determination of lead and cooperating agencies. B. CEQ's NEPA regulations been repealed, effective April 11. <E T="03">See Removal of National Environmental Policy Act Implementing Regulations,</E> (90 FR 10610; Feb. 25, 2025). This action was necessitated by and consistent with Executive Order (E.O.) 14154, <E T="03">Unleashing American Energy</E> (90 FR 8353; January 20, 2025), in which President Trump rescinded President Carter's E.O. 11991, <E T="03">Relating to Protection and Enhancement of Environmental Quality</E> (42 FR 26967; May 24, 1977), which was the basis CEQ had invoked for its authority to make rules to begin with. The Corps' regulations, which were a supplement to those CEQ regulations, thus stand in obvious need of fundamental revision. President Trump in E.O. 14154 further directed agencies to revise their NEPA implementing procedures consistent with the E.O., including its direction to CEQ to rescind its regulations. In addition, Congress recently amended NEPA in significant part, in the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed on June 3, 2023, in which Congress added substantial detail and direction in Title I of NEPA, including in particular on procedural issues that CEQ and individual acting agencies had previously addressed in their own procedures. The Corps recognized the need to update is regulations in light of these significant legislative changes. Since the Corps' regulations were originally designed as a supplement to CEQ's NEPA regulations, the Corps had been awaiting CEQ action before revising its regulations, consistent with CEQ direction. <E T="03">See</E> 40 CFR 1507.3(b) (2024); <E T="03">see also</E> 86 FR 34154 (June 29, 2021). However, with CEQ's regulations now rescinded, and with the Corps' NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that the Army move quickly to conform its procedures to the statute as amended. Finally, the Supreme Court on May 29, 2025 issued a landmark decision, <E T="03">Seven County Infrastructure Coalition</E> v. <E T="03">Eagle County, Colorado,</E> 145 S. Ct. 1497 (2025), in which it decried the “transform[ation]” of NEPA from its roots as “a modest procedural requirement” into a significant “substantive roadblock” that “paralyze[s]” “agency decisionmaking.” <E T="03">Id.</E> at 1507, 1513 (quotations omitted). The Supreme Court explained that part of that problem had been caused by decisions of lower courts, which it rejected, issuing a “course correction” mandating that courts give “substantial deference” to reasonable agency conclusions underlying its NEPA process. <E T="03">Id.</E> at 1513-14. But the Court also acknowledged, and through its course correction sought to address, the effect on “litigation-averse agencies” which, in light of judicial “micromanage[ment],” had been “tak[ing] ever more time and [ ] preparing ever longer EISs for future projects.” <E T="03">Id.</E> at 1513. The Corps, thus, is issuing this IFR to align its actions with the Supreme Court's decision and streamline its process of ensuring reasonable NEPA decision. This revision has thus been called for, authorized, and directed by all three branches of government at the highest possible levels. C. Therefore, the Corps is replacing 33 CFR part 325, appendix B with 33 CFR part 333—Procedures for Complying with the National Environmental Policy Act. Title 33 CFR part 333 will provide the implementation procedures for the Army Civil Works Regulatory Program and for the Army Civil Works, 33 U.S.C. 408, permission process. In addition to the Regulatory program authorities originally covered by appendix B, Congress also authorized the Corps to provide permission for “the temporary occupation or use of [Civil Works projects] . . . when . . . such occupation or uses will not be injurious to the public interest” and for “the alteration or permanent occupation or use of any [Civil Works project] . . . when . . . such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work.” 33 U.S.C. 408(a). The 33 U.S.C. 408 permission program had relied on NEPA implementation procedures in 33 CFR part 230. While appendix B did not apply to 33 U.S.C. 408 authorizations, 33 CFR part 333 will be the NEPA procedures the Corps will follow when deciding whether to grant permission under 33 U.S.C. 408(a) because the procedural aspects of NEPA analysis supporting evaluations of requests for section 408 permissions are more like the regulatory program than other aspects of the Civil Works program covered by part 230. The Corps is publishing NEPA implementing procedures consistent with NEPA as amended by the Fiscal Responsibility Act of 2023. The Army's new NEPA implementing procedures, as adopted via this interim final rule, are a more faithful implementation of the statute as amended in 2023 than its old procedures. They ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 151k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━